# Ishwar Saran (since deceased) & Ors. Defendant/ v. Vijai Kumar Kushwaha & Ors

- **Citation:** (2021) 9 ILRA 723
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-09-07
- **Case number:** Second Appeal No. 1169 of 2018
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ishwar-saran-since-deceased-ors-defendant-v-vijai-kumar-kushwaha-ors-47388
- **Pages:** 6

## Headnote

Law
-
Code
of
Civil
Procedure,1908-Section
100-plaintiff
instituted a suit for partition-the suit
was
dismissed-this
decree
was
challenged belatedly by an appeal u/s
96 accompanied by an application u/s 5
of the limitation Act, seeking the delay
724 INDIAN LAW REPORTS ALLAHABAD SERIES
in preferring the appeal to be condonedlearned trial court rejected the delay
condonation application, accompanying
appeal, as time barred-the delay was not
deliberate but proceeds from the wrong
legal advice given by earlier counsel,
which they bonafide believed to be true
and
did
not
appeal
earlier-the
appeallants
have
stated
with
full
particulars as to what advice they
received-these assertions have not been
rebutted by the defendant on affidavitWhat may constitute sufficient cause
and
what
may
not,
is
indeed
a
substantial
question
of
law-delay
occasioned on account of wrong advice
they received, is a ground in law
'sufficient' to condone delay-The lower
Appellate Court has done a short shrift
of the matter to conclude, without
assigning any reason that the cause
shown is not sufficient. (Para 1 to 16)

The appeal is allowed. (E-6)

List of Cases cited:

## Text

9 All Ishwar Saran (since deceased) & Ors. Vs. Vijai Kumar Kushwaha & Ors.
723
by the respondent, as he has not stepped
into the witness box;

12. The respondent has not made any
endeavour of reconciliation and has also
not appeared before this Court and has
chosen to remain absent though served.

13. The petitioner was subjected to
the mental and physical cruelty as alleged
in the petition. So, from the above said
reasons, the marriage seems to have turned
into deadlock as they have no cohabitation
with each other since last more than two
years. Therefore, the petitioner has been
successful in establishing that she was
treated with cruelty and has been deserted
by
the
husband
and
hence
the
petitioner/appellants entitled to a decree of
divorce as prayed for therefore, in view of
the above, a decree of divorce requires to
be granted to this petitioner/appellant. .It is
proved that she was driven out of the
matrimonial house and neglected by the
husband, which is obviously proved and
thus, she is entitled to divorce.We are also
fortified in our view by placing relence on
the decision in The judgment reported in
AIR 2005 SC 3508 in the case of Geeta
Jagdish
Mangtani
v.
Jagdish
Mangtani,which also helps the petitioner's
case as there where thefacts show " the
wife left matrimonial home in Mumbai
only after about 4 months of marriage and
started living with her parents in Gujarat
where she gave birth to child and then
continued with her teaching job. No
attempt was made by her to stay with
husband which clearly established animus
deserendi. The course of conduct adopted
by the respondent proved desertion on her
part without reasonable cause. The Hon'ble
Supreme Court has held that it amounted to
willful neglect of husband and he, is
therefore, entitled to divorce decree".

14. The appeal is allowed.

15. The marriage dated 11.02.2012
are ordered to be dissolved. The Marriage
Petition No. 518 of 2018 (Smt. Shruti
Bhatnagar Vs. Mayank Bhatnagar) under
Section 13 (1)(A)of Hindu Marriage
Act1955 is allowed .The judgment and
decree are reversed. The family court to
draw modified decree in consonance with
this judgment within eight weeks from
today. Record be sent to the concerned
Family Court.

16. We are thankful to young counsel
who argued the matter and has assisted the
Court ably.
----------
(2021)09ILR A723
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.09.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 1169 of 2018

Ishwar Saran (since deceased) & Ors.
 ...Defendant/Appellants
Versus
Vijai Kumar Kushwaha & Ors.
 ...Plaintiff/Respondents

Counsel for the Appellants:
Manjari Singh, Sri Ashotosh Guota, Sri
Kunal Ravi Singh

Counsel for the Respondents:

A.
Civil
Law
-
Code
of
Civil
Procedure,1908-Section
100-plaintiff
instituted a suit for partition-the suit
was
dismissed-this
decree
was
challenged belatedly by an appeal u/s
96 accompanied by an application u/s 5
of the limitation Act, seeking the delay
724 INDIAN LAW REPORTS ALLAHABAD SERIES
in preferring the appeal to be condonedlearned trial court rejected the delay
condonation application, accompanying
appeal, as time barred-the delay was not
deliberate but proceeds from the wrong
legal advice given by earlier counsel,
which they bonafide believed to be true
and
did
not
appeal
earlier-the
appeallants
have
stated
with
full
particulars as to what advice they
received-these assertions have not been
rebutted by the defendant on affidavitWhat may constitute sufficient cause
and
what
may
not,
is
indeed
a
substantial
question
of
law-delay
occasioned on account of wrong advice
they received, is a ground in law
'sufficient' to condone delay-The lower
Appellate Court has done a short shrift
of the matter to conclude, without
assigning any reason that the cause
shown is not sufficient. (Para 1 to 16)

The appeal is allowed. (E-6)

List of Cases cited:

1. Allah Tala Vs DDC & ors.,(1993) AWC 155 All

2. Collector,Land Acquisition, Ananantnag & anr.
Vs Mst. Katiji & ors. (1987) 2 SCC 107

(Delivered by Hon'ble J.J. Munir, J)

1. This second appeal is directed
against an order of the learned Additional
District Judge, Court No. 15, Allahabad in
Miscellaneous Case No. 475 of 2017,
rejecting an application to condone the
delay in preferring an appeal from the
judgment and decree of the Additional
Civil Judge (Junior Division), Court No.
12, Allahabad dated 14.08.2013 passed in
O.S. No. 485 of 1989.

2. Looking to the limited issue that is
involved in this appeal, an elucidation of
facts giving rise to the suit or the merits of
the parties' case is not required.

3. The plaintiff-appellants instituted a
suit for partition of the suit property,
subject matter of O.S. No. 485 of 1989,
against the defendant-respondents. The
Additional Civil Judge (Junior Division),
Court No. 12, Allahabad tried the suit and
dismissed it vide her judgment and decree
dated
14.08.2013.
This
decree
was
challenged belatedly by an appeal under
Section 96 C.P.C. preferred to the learned
District Judge of Allahabad on 17.05.2017.
The appeal was accompanied by an
application
under
Section
5
of
the
Limitation Act also dated 17.05.2017,
seeking the delay in preferring the appeal to
be condoned. The application was duly
supported by an affidavit. This delay
condonation application bearing Paper No.
5-C was registered as Miscellaneous Case
No. 453 of 2017 on the file of the learned
District Judge, Allahabad. The belated
appeal, along with the delay condonation
application, was assigned to the learned
Additional District Judge, Court No. 15,
Allahabad, where it was numbered as
Miscellaneous Case No. 475 of 2017. It is
this application for condonation of delay
that has come to be rejected by the order
impugned, and with it, the accompanying
appeal, as time barred.

4. It is said in the affidavit filed in
support
of
the
delay
condonation
application that upon dismissal of the
appellants' suit by the Trial Court, they
sought advice from their Counsel about the
steps to be taken against the said decree. It
is stated that the learned counsel advised
them that since a second appeal was
already pending before this Court relating
to the same property, no appeal was
required to be filed from the Trial Court's
decree. It is further stated that from the
judgment and decree passed in O.S. No.
128 of 1990, an appeal was carried and
9 All Ishwar Saran (since deceased) & Ors. Vs. Vijai Kumar Kushwaha & Ors.
725
further, a second appeal to this Court, being
Second Appeal No. 1765 of 1999, which
was said to be pending. It is stated that it
was in connection with briefing the learned
Counsel in the second appeal that the
Counsel in the High Court came across the
judgment and decree dated 27.04.2017
passed by the Trial Court, that is in
question here. The learned Counsel asked
the appellants whether the said decree has
been appealed, to which the appellants
responded by disclosing that the earlier
Counsel had advised them that it was not
required. The appellants were thereupon
advised to forthwith appeal the judgment
and decree passed by the Trial Court under
reference.

5. Upon receipt of the said advice, the
appellants got an application made for the
inspection of records through Mr. Uma
Shankar Tiwari, Advocate on 28.04.2017.
The inspection was made on 04.05.2017.
There was in between a strike called for by
the Counsel of the District Court, that led to
some
delay
in
presentation
of
the
application for a certified copy of the
judgment and decree passed by the Trial
Court. The application for a certified copy
was made on 09.05.2017. The appeal was
presented on 17.05.2017.

6. It has been averred specifically that
the delay in preferring the appeal is not
deliberate, but proceeds from the wrong legal
advice given by Mr. Santosh Kumar
Srivastava, Advocate earlier engaged by the
appellants, which they bona fide believed to
be true and did not appeal earlier. It is stated
that as soon as the appellants received advice
on 27.04.2020 during briefing on the pending
second appeal under reference by the learned
Counsel appearing in the High Court, they
have acted without delay to prefer the appeal.
The defendant-respondents contested the
application for condonation of delay and said
that the delay has been deliberately made.
The defendant-respondents, in answer to the
delay condonation application, did not file
any objections, or affidavits. They have
objected orally. It is recorded by the learned
Judge in the order impugned that the
defendant-respondents have said that there is
no good ground shown in the application
under Section 5 of the Limitation Act that
may make out a case for the condonation of
delay.

7. This appeal was admitted to hearing
vide order dated 15.11.2018 with reference to
the substantial questions of law nos. 1, 2 and
4 formulated in the memorandum of appeal,
but without the Court actually formulating
any substantial question of law in the order of
that date. Accordingly, when the appeal came
up for hearing on 02.09.2021, this Court has
proceeded
to
formulate
the
following
substantial questions of law:

(1) Whether legal advice not to file
an appeal bona fide believed to be correct,
would constitute 'sufficient cause' to condone
the delay as postulated under Section 5 of the
Limitation Act?

(2) Whether the Court while
considering a plea for condonation of delay
ought to lean in favour of hearing on
merits, particularly, in the case of a first
appeal, rather than shutting out hearing?

8. Since the respondents have not
appeared despite service being held good
vide order dated 09.08.2021, this appeal
has been heard ex parte and judgment was
reserved on 02.09.2021.

9. The first substantial question of law
noted by the learned counsel for the
appellants is about bona fide belief in the
726 INDIAN LAW REPORTS ALLAHABAD SERIES
genuineness of a legal advice received to
qualify for "sufficient cause" to condone
delay, as postulated under Section 5 of the
Limitation Act. What may constitute
sufficient cause and what may not, is
indeed a substantial question of law. In
support of the submission that delay
occasioned on account of bona fide belief
in the soundness of legal advice received,
that may be found to be incorrect, is a
ground in law 'sufficient' to condone delay,
the learned counsel for the appellant Mr.
Kunal Ravi Singh relies on a decision of
this Court in Allah Tala vs. Deputy
Director of Consolidation and others,
1993 AWC 155 All. The said decision
involved choosing of a wrong forum by the
petitioner to file a revision before the
Deputy Director of Consolidation, Jalaun at
Orai, whereas the jurisdictional Deputy
Director was the Deputy Director of
Consolidation, Kanpur Dehat. It was in
those circumstances that the order of the
Deputy Director of Consolidation, who had
jurisdiction, declining to condone delay on
account of wrong legal advice in preferring
the earlier revision before a territorially
incompetent Tribunal was held to be a
"sufficient cause".

10. It is true that in the last mentioned
case, it was not a case of inaction, but steps
taken in the wrong forum, based on wrong
legal advice that was bona fide believed to
be true. Here, this Court finds that there is a
previous litigation pending between parties,
where the defendants had instituted a suit
against the plaintiffs, seeking to recover
possession on ground that they were
licensees in the suit property. This has
figured in the judgment of the Trial Court,
whereagainst the appeal has been scuttled
on the ground of delay. The appellants have
stated with full particulars as to what
advice
they
received,
particularly,
nominating the learned Counsel from
whom they received it and how and under
what circumstances, they realized that it
was incorrect. These assertions have not
been rebutted on behalf of the defendantrespondents on affidavit. Therefore, these
remain un-rebutted entirely.

11. The Lower Appellate Court has
also not assigned reasons why it has
disbelieved the explanation offered by the
defendant-appellants. Rather, there is a
cryptic remark carried in the impugned
judgment with reference to the defendantappellants' case for condonation to the
effect that : "इसप्रकार प्राथी के प्राथानापत्र एविं
शपथपत्र में वनणात कथनोिं के आधार पर नवलब
को क्षमा नकये जाने पर कोई समुनचत आधार
दनशात नहीिं है।". There is no reason why the
Appellate Court has reached its conclusions
to disbelieve the defendant-appellants'
explanation. But, that is not the substance
of the substantial question of law under
consideration. What is of relevance is that
whatever explanation for the delay the
appellants have furnished in the affidavit
filed in aid of the delay condonation
application, carries facts and urges a
ground to the effect that the delay was
occasioned by incorrect legal advice bona
fide believed to be true. A wrong legal
advice which a party bona fide believes to
be true generally constitutes, though not
always, sufficient cause to condone delay
within the meaning of Section 5 of the
Limitation Act. The substantial question of
law no. 1 is, therefore, answered in the
affirmative.

12. So far as the other substantial
question is concerned, it is mooted by Mr.
Kunal Ravi Singh that condonation of
delay is a matter where the Court should
lean in favour of hearing on merits. It is
9 All Ishwar Saran (since deceased) & Ors. Vs. Vijai Kumar Kushwaha & Ors.
727
true for a principle that there is high
authority that says that the Court should, as
far as may be opt to decide on merits,
rather than shutting out parties on the
technicality of limitation. Reference is to be
made in this connection to the decision of
the Supreme Court in Collector, Land
Acquisition, Ananantnag and Another v.
Mst. Katiji and Others, (1987) 2 SCC 107,
where, it has been held:

"3. The legislature has conferred
the power to condone delay by enacting
Section 5 of the Indian Limitation Act of
1963 in order to enable the courts to do
substantial justice to parties by disposing
of matters on 'merits'. The expression
"sufficient
cause"
employed
by
the
legislature is adequately elastic to enable
the courts to apply the law in a meaningful
manner which subserves the ends of
justice─that being the life-purpose for the
existence of the institution of courts. It is
common knowledge that this Court has
been making a justifiably liberal approach
in matters instituted in this Court. But the
message
does
not
appear
to
have
percolated down to all the other courts in
the hierarchy. And such a liberal approach
is adopted on principle as it is realized
that:

1. Ordinarily a litigant does not
stand to benefit by lodging an appeal late.

2. Refusing to condone delay can
result in a meritorious matter being thrown
out at the very threshold and cause of
justice being defeated. As against this when
delay is condoned the highest that can
happen is that a cause would be decided on
merits after hearing the parties.

3. "Every day's delay must be
explained" does not mean that a pedantice
approach should be made. Why not every
hour's delay, every second's delay? The
doctrine must be applied in a rational
common sense pragmatic manner.

4. When substantial justice and
technical considerations are pitted against
each other, cause of substantial justice
deserves to be preferred for the other side
cannot claim to have vested right in
injustice being done because of a nondeliberate delay.

5. There is no presumption that
delay is occasioned deliberately, or on
account of culpable negligence, or on
account of mala fide. A litigant does not
stand to benefit by resorting to delay. In
fact he runs a serious risk.

6. It must be grasped that
judiciary is respected on on account of its
power to legalize injustice on technical
grounds but because it is capable of
removing injustice and is expected to do
so."

13. There could be a situation, where
the delay is indeed not condonable in the
sense that circumstances show gross
negligence,
or
the
litigant
may
be
demonstrated to be one who has slept over
his rights. Those are cases, where the other
side contests the claim, rebuts the facts and
disputes
what
the
party
seeking
condonation asserts or urges. Here, the
defendant-respondents have not cared to
file a written objection to the delay
condonation application, let alone an
affidavit rebutting the allegations made on
affidavit
in
support
of
the
delay
condonation application.

14. It is also to be remembered that the
proceedings where delay is sought to be
728 INDIAN LAW REPORTS ALLAHABAD SERIES
condoned, though not in themselves very
material, may not be irrelevant altogether.
The delay here is sought to be condoned in a
first appeal. It is well acknowledged that a
First Appeal is about a very valuable right of
the litigant, inasmuch as it is an appeal of
right, both on facts and law. This is what
Section 96 C.P.C. makes it to be. This right of
appeal is not subject to any limitation, such as
the demonstrable involvement of a substantial
question of law or it being subject to
discretion of the Court. This being the nature
of the appeal envisaged under Section 96
C.P.C., a prayer for condonation of delay
must necessarily be viewed in the context of
the right that the appellants have at stake. The
nature of the jurisdiction, therefore, would all
the more require a relatively liberal exercise
of the discretion to condone delay, once the
explanation comes within what the law
understands as "sufficient cause". Here, as
remarked elsewhere in this judgment, the
Lower Appellate Court has done a short shrift
of the matter to conclude, without assigning
any reason that the cause shown is not
sufficient.

15. This Court is of opinion that the
substantial question of law no. 2 should
also be answered in the affirmative.

16. In the circumstances, this Court is
of opinion that this appeal must succeed.
The appeal succeeds and is hereby allowed.
The impugned judgment dated 31.07.2018
passed by the learned Additional District
Judge, Court No. 15, Allahabad in
Miscellaneous Case No. 475 of 2017 is
hereby set aside and reversed. The Delay
Condonation application stands allowed.

17. The Lower Appellate Court shall
now proceed to hear the appeal, if there is
no other defect, under Order XLI Rule 11
C.P.C.

18. Costs easy.
----------
(2021)09ILR A728
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.08.2021 &
02.09.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SUBHASH CHAND, J.

F.A.F.O. No. 42 of 2019

Deepak & Anr. ...Appellants
Versus
U.P.S.R.T.C. & Anr. ...Respondents

Counsel for the Appellants:
Sri Pankaj Rai, Neelam Pandey

Counsel for the Respondents:

Motor accident claim-Claimant lost young son
studyng in Class VIII-Tribunal relied upon II
schedule of the Act and no amount towards
future loss of income granted-50% of mainimum
wages have to be added under head of future
prospects-order modified.

Appeal partly allowed. (E-9)

List of Cases cited:

1. New India Assurance Co. Ltd. Vs Urmila
Shukla & ors. passed in Civil Appeal No. 4634 of
2021 decided on 06.08.2021

2. National Insurance Co. Ltd.Vs Pranay Sethi &
ors., 2017 0 Supreme (SC) 1050

3.National Insurance Co. Ltd. Vs Mannat Johal &
ors., 2019 (2) T.A.C. 705 (S.C.)

4. A.Vs Padma Vs Venugopal reported in 2012
(1) GLH (SC) 442

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.